Wellington Farms, Inc. v. Township of Silver Spring

679 A.2d 267, 1996 Pa. Commw. LEXIS 289

• Court: Commonwealth Court of Pennsylvania
• Decided: June 6, 1996
• Status: Published

Opinion

MeGINLEY, Judge.

Wellington Farms, Inc. (Wellington Farms) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) der™ Wellington Farms’ motion to modify and clarify a preliminary injunction.

Wellington Farms operated a poultry slaughterhouse in Silver Spring Township (Township) in Cumberland County, Pennsylvania. By notice of zoning violation dated February 18, 1993, the Township notified Wellington Farms that its practice of slaughtering poultry not raised on the premises violated the Township’s zoning ordinance.¹

On September 3, 1993, the Township filed a complaint in equity and a petition for preliminary injunction seeking to enjoin Wellington Farms from violating the zoning ordinance. On September 27, 1993, the trial court granted the preliminary injunction.²

On February 23, 1995, the Township petitioned to have Wellington Farms held in civil contempt for violating the terms of the preliminary injunction. By order dated April 21, 1995, the trial court found Wellington Farms in contempt.

On May 1, 1995, the Township again petitioned to have Wellington Farms found in contempt for continued poultry processing in blatant violation of the zoning ordinance and the trial court’s prior orders. On May 17, 1995, the trial court again held Wellington Farms in contempt.

On May 22, 1995, Wellington Farms requested the trial court to modify the preliminary injunction. The motion was subsequently denied. On May 26, 1995, Wellington Farms filed another motion to modify which the trial court denied by order dated July 27, 1995. The present appeal followed.

On appeal, Wellington Farms contends 1) that the trial court erred by refusing to modify the injunction to reflect that Wellington Farms’ practice of transporting poultry to Wellington Farms’ property weeks before the poultry is slaughtered complied with the ordinance, and 2) that the provisions of the Protection of Agricultural Operations from Nuisance Suits and Ordinances Act (Act), Act of June 10, 1982, P.L. 454. No. 138, os amended, S P.S. §§ 951-957 prohibited the Township from enforcing the zoning ordinance and the trial court from enjoining.

The issues raised by Wellington Farms were previously argued before the trial court and ably disposed of in the comprehensive opinion of the Honorable J. Wesley Oler, Jr. who determined that modification of the injunction was not warranted and that the Act was not applicable. As a result we affirm on the basis of the trial court’s opinion. Township of Silver Spring v. Wellington Farms, Inc., No. 37 Equity 1993, Cumberland County, filed September 29, 1995.³

ORDER

AND NOW, this 6th day of June, 1996, the order of the Court of Common Pleas of Cumberland County in the above-captioned matter is affirmed upon the opinion of the Honorable J. Wesley Oler, Jr. in Township of Silver Spring v. Wellington Farms, Inc., No. 37 Equity 1993, Cumberland County, filed September 29, 1995, and liability for reasonable counsel fees is imposed on Wellington Farms pursuant to Pa.R.A.P. 2744. The Township of Silver Spring must file an itemized bill of costs with this Court indicating the attorney’s hourly rate and the total hours worked on the appeal in this case within fourteen (14) days of the entry of this order.

1 . We note that the denial of Wellington Farms' appeal by the Township’s Zoning Hearing Board was affirmed by the trial court. We also note that this court affirmed the trial court in the memorandum opinion of the Honorable Joseph T. Doyle Wellington Farms, Inc. v. Zoning Hearing Board of Silver Spring Township, 657 A.2d 144(1995).

2 . We note that this court approved the trial court's preliminary injunction in the memorandum opinion of the Honorable Doris A. Smith, Wellington Farms, Inc. v. Township of Silver Spring, 166 Pa.Cmwlth. 716, 646 A.2d 81 (1994).

3 . We agree with the Township’s assessment that Wellington Farms’ appeal is frivolous. A frivolous appeal presents no justifiable questions for appellate review and is readily recognizable as devoid of merit in that there is little or no prospect for success. Pennsylvania Department of Transportation v. Workmen's Compensation Appeal Board, 654 A.2d 3 (Pa.Cmwlth.1994). Accordingly, we award reasonable counsel fees to the Township, in accordance with Pa.R.A.P. No. 2744.